Citation Nr: 0007636
Decision Date: 03/21/00 Archive Date: 03/28/00
DOCKET NO. 95-41 120 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. Hal Smith, Counsel
INTRODUCTION
The veteran served on active duty from September 1965 to July
1969.
This matter comes to the Board of Veterans' Appeals (Board)
from rating determinations of the Department of Veterans
Affairs (VA) Regional Office (RO) in Los Angeles, California.
In June 1994, the veteran filed a claim for VA benefits,
claiming service connection for PTSD. By rating decision in
May 1995, the RO denied service connection for PTSD since
neither the medical evidence in the file nor the veteran's
statements indicated verifiable stressors due to combat. In
August 1998, the Board remanded the claim for additional
development to include an attempt to verify the appellant's
stressors. The RO again denied service connection for PTSD
in November 1999 as the stressors related by the veteran were
not verified. The appeal continues.
FINDINGS OF FACT
1. The veteran did not engage in combat while in service.
2. There is no credible supporting evidence of an inservice
stressor necessary to support a diagnosis of PTSD.
3. The veteran does not have PTSD as a consequence of his
military service.
CONCLUSION OF LAW
PTSD was not incurred in or aggravated by active service.
38 U.S.C.A. §§ 1101, 1110, 1154 (West 1991); 38 C.F.R.
§§ 3.303, 3.04(f) (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
A PTSD claim is well grounded if there is medical evidence of
a current disability, lay evidence (presumed to be credible
for these purposes) of an in-service stressor, which in a
PTSD case is the equivalent of in-service incurrence or
aggravation; and medical evidence of a nexus between service
and the current PTSD. Gaines v. West, 11 Vet. App. 353, 357
(1998). Where there is a clear diagnosis of PTSD, an
appellant's assertions of participation in combat are
generally accepted as true for purposes of determining
whether the claim is well grounded. Falk v. West, 12 Vet.
App. 402, 404 (1999); but see Samuels v. West, 11 Vet. App.
11 Vet. App. 433 (1998) (VA is not required to accept the
truthfulness of inherently incredible assertions).
The Board has found the veteran's claim to be well grounded.
VA and private medical records contain diagnoses of PTSD.
The only reported stressors supporting those diagnoses were
combat stressors reported by the veteran.
However, even where the claim is found to be well grounded,
service connection for PTSD requires more. There must be
medical evidence establishing a diagnosis of the condition,
credible supporting evidence that the claimed inservice
stressor actually occurred, and a link, established by
medical evidence, between current symptomatology and the
claimed inservice stressor. If the claimed stressor is
related to combat, service department evidence that the
veteran engaged in combat or that the veteran was awarded the
Purple Heart Medal, the Combat Infantryman Badge, or similar
combat citation will be accepted, in the absence of evidence
to the contrary, as conclusive evidence of a claimed
inservice stressor. Gaines v. West, at 357; 38 C.F.R.
§ 3.304(f).
In this regard, in August 1998, the Board remanded this case.
At that time, the Board stated that the RO should request
from the appellant a comprehensive statement containing as
much detail as possible regarding the stressors to which he
alleged he was exposed in service. The appellant was to
provide specific details of the claimed stressful events
during service, such as dates, locations, detailed
descriptions of events, units involved, and number and names
of causalities. The RO advised the appellant that his
information was vitally necessary to obtain supportive
evidence of the stressful events and that he should be as
specific as possible because without such details, an
adequate search for verifying information could not be
conducted.
The veteran responded by reporting that he could supply only
one date, that being his date of arrival in Vietnam. He
related that on that occasion the base was under rocket
attack. He reported no additional stressors.
The Board's remand instructed the RO to submit a request to
the USASCRUR for further documentation or confirmation
regarding the veteran's claimed stressors. The USASCRUR
responded to this request in October 1999. USASCUR reported
that it while it could document rocket attacks on other
occasions, it could not document a rocket attack on the day
of the veteran's arrival at his base in Vietnam.
The Board notes that the records do not document that the
veteran participated in combat. Therefore, in light of the
above, the Board is satisfied that all available relevant
evidence is of record and that the statutory duty to assist
the appellant in the development of evidence pertinent to
this claim has been met.
In general, service connection may be granted for a
disability resulting from disease or injury incurred in or
aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. §
3.303. With regard to service connection for PTSD, there
must be: (1) medical evidence establishing a diagnosis of the
disorder in accordance with 38 C.F.R. § 4.125 (American
Psychiatric Association: DIAGNOSTIC AND STATISTICAL MANUAL
FOR MENTAL DISORDERS, 4th Ed., (DSM-IV)); (2) credible
supporting evidence that the claimed in-service stressor
actually occurred; and (3) a link, established by medical
evidence, between current symptomatology and the claimed in-
service stressor. 38 C.F.R. § 3.304(f); See also Cohen v.
Brown, 10 Vet. App. 128, 138 (1997) (citing Moreau v. Brown,
9 Vet. App. 389, 394-95 (1996)). If the claimed stressor is
related to combat, service department evidence that the
veteran engaged in combat, or that the veteran received an
award of the Purple Heart, Combat Infantryman Badge, or other
similar combat citation, will be accepted as conclusive
evidence of the claimed in-service stressor, absent evidence
to the contrary. See Cohen, supra, (quoting 38 C.F.R. §
3.304 (f)); see also VA ADJUDICATION PROCEDURE MANUAL M-21-1,
Part III, 5.14 (April 30, 1999) (hereinafter M21-1).
An earlier version of § 3.304(f), which is applicable in this
case required a "clear diagnosis" of PTSD. 38 C.F.R.
§ 3.304(f) (1998). This change has no effect on the
adjudication of the veteran's claim, since he has a diagnosis
of PTSD that meets the requirements of both the old and new
versions of the regulation.
Evidence to support a PTSD claim must be evaluated in light
of the places, types and circumstances of service as
evidenced by service records, the official history of each
organization in which the veteran served, the military
records, and all pertinent medical and lay evidence. The
requirements vary depending upon whether or not the veteran
engaged in combat with the enemy. 38 U.S.C.A. § 1154(b); 38
C.F.R. §§ 3.303, 3.304(f); West v. Brown, 7 Vet. App. 70, 75
(1994); Hayes v. Brown, 5 Vet. App. 60, 66 (1993).
If there is no combat experience, or if there is a
determination that the veteran engaged in combat but the
claimed stressor is not related to such combat, there must be
independent evidence to corroborate the veteran's statement
as to the occurrence of the claimed stressor. It is not
sufficient to simply rely on service in a combat zone.
Zarycki v. Brown, 6 Vet. App. 91, 99 (1993). Nor is the
veteran's lay testimony alone sufficient to establish the
occurrence of the alleged stressor. In such cases, the
record must contain service records or other corroborative
evidence that substantiates or verifies the veteran's
testimony or statements as to the occurrence of the claimed
stressor. See West, 7 Vet. App. at 76; Zarycki, 6 Vet. App.
at 98. In Doran v. Brown, 6 Vet. App. 283, 290-91 (1994),
the United States Court of Veterans Appeals (Court) held that
"the absence of corroboration in the service records, when
there is nothing in the available records that is
inconsistent with other evidence, does not relieve the BVA of
its obligations to assess the credibility and probative value
of the other evidence." West, Zarycki, and Doran cited a
provision of the M21-1 which has now been revised as to
"Evidence of Stressors in Service" to read, in part,...
"[C]orroborating evidence of a stressor is not restricted to
service records, but may be obtained from other sources."
Since an October 1995 revision of the M21-1, the Court has
held that the requirements in 38 C.F.R. § 3.304(f) for
"credible supporting evidence" means that the "appellant's
testimony, by itself, cannot, as a matter of law, establish
the occurrence of a non-combat stressor." See Moreau, 9
Vet. App. at 395; Dizoglio v. Brown, 9 Vet. App. 163, 166
(1996).
The Board notes that VA has adopted the fourth edition of the
American Psychiatric DSM-IV, in amending 38 C.F.R. §§ 4.125
and 4.126. See 61 Fed.Reg. 52695-52702 (1996). The standard
as to whether a stressor is sufficient to trigger PTSD is a
subjective standard, requiring exposure to a traumatic event
and a response involving intense fear, helplessness, or
horror. See Cohen, 10 Vet. App. at 153 (Nebeker, C.J.,
concurring).
VA's General Counsel has recently defined the phrase
"engaged in combat with the enemy" as used in 38 U.S.C.A.
§ 1154, as requiring that the veteran have personally
participated in events constituting an actual fight or
encounter with a military foe or hostile unit or
instrumentality. VAOPGCPREC 12-99 (1999).
The record before the Board demonstrates that the appellant
has clearly been diagnosed as having PTSD. While there is
evidence of treatment for psychiatric complaints and a
diagnosis of depression as early as the late 1980s, a
diagnosis of
PTSD was not clearly evidence until the VA compensation and
pension examination report conducted on August 5, 1994. At
that time, the veteran reported that when he was in military
service, he saw a man walking down the highway carrying
another man's hand. He also described a time when he was
under enemy attack and stuck in a foxhole. He was disturbed
because he had heard that they had "wrote us off."
When asked about whether his experience in Vietnam affected
him currently, he said that at times, his experiences were
"pretty vivid" and he felt a sense of sympathy and
camaraderie with other veterans. He said that he did not
dream and reported no flashbacks. Following psychological
testing to include the Minnesota Multiphasic Personality
Inventory, the examiner concluded that the veteran met the
criteria for sub-threshold PTSD.
Upon VA PTSD examination on August 9, 1994, the veteran again
related the stressors noted above. Following evaluation, the
diagnoses were PTSD and dysthymic disorder secondary to loss
of vision.
Private records from 1995 reflect that the veteran was seen
for PTSD symptomatology.
In an October 1997 statement, the veteran's daughter noted
that she had been witness to sudden changes of behavior in
her father. For example, she said that he often expressed
his anger verbally or physically. She and her siblings, as
well as her mother, were always afraid that they were going
to "trigger" something in their father which would suddenly
cause him to lose his temper.
At a videoconference hearing before the undersigned in June
1998, the veteran testified in support of his claim. He said
that he encountered rocket or mortar fire on numerous
occasions to include one occasion when a soldier in the
latrine was obliterated by a rocket. Hearing [Hrg.]
Transcript [Tr.] at 8. He also recalled that when driving
from one part of the base to another, he picked up a marine
who was carrying another soldier's forearm and his hands.
Tr. at 9. He did not know the names of these soldiers. Tr.
at 11.
In an October 1999 report, the USASCRUR reviewed the
veteran's personnel records. They were unable to verify that
the veteran was exposed to combat. The records did show that
his base at Phu Bai, was hit by rocket and mortar fire in May
1968, resulting in the death of two military personnel.
However this event took place a few days before the veteran's
arrival. During his time at Phu Bai, the records reflect one
rocket attack in August 1968, with no casualties noted.
Analysis
In this case, the medical evidence shows that VA and other
examiners have given the appellant a diagnosis of PTSD for
his current symptomatology. The record supports a conclusion
that the veteran currently has PTSD, and the Board does not
dispute that fact. Pursuant to 38 C.F.R. § 3.304(f), the
first element is therefore met, which is a diagnosis of PTSD
made in accordance with 38 C.F.R. § 4.125.
The Board's review of the evidence of record to include the
veteran's DD 214 and personnel records does not document the
receipt of any medals, badges, or citations which would
denote participation in combat. The veteran's service
personnel records show that his specialty during service was
as an electric power production specialist. A specialty that
would not be expected to involve combat. The veteran's
service personnel records do not show that he was stationed
in Vietnam, although subsequently dated Air Force records
show that he was on TDY (temporary duty) at Phu Bai, Vietnam
from June 5 to October 1, 1968. This record shows that the
veteran did not have a combat specialty, and the unit reports
show his unit was involved in little, if any combat, while he
was on temporary duty in Vietnam.
The veteran has reported involvement in various amounts of
combat. However, the Board finds his variable statements to
be less probative than the service records, which directly
contradict some of his assertions, and the records which show
his noncombat specialty, and the lack of combat decorations,
and concludes that he did not engage in combat while in
Vietnam.
Since the record does not show that the veteran participated
in combat, in order to establish entitlement to service
connection for PTSD, there must be credible supporting
evidence of his claimed stressors.
The Board notes, that "[j]ust because a physician or other
health professional accepted the appellant's description of
[his]...experiences as credible and diagnosed the appellant as
suffering from PTSD does not mean the [Board is] required to
grant service connection for PTSD." Wilson v. Derwinski, 2
Vet. App. 614, 618 (1992). The Board is not required to
accept the appellant's uncorroborated account of his
experiences. Swann v. Brown, 5 Vet. App. 229, 233 (1993);
Wood v. Derwinski, 1 Vet. App. 190, 192 (1991).
Furthermore, as noted above, there is no documentation of
records confirming that the appellant engaged in combat with
the enemy or in combat situations. Therefore, in light of
the above, the appellant received no combat citations or
other awards which could be "accepted, in the absence of
evidence to the contrary, as conclusive evidence of the
claimed inservice stressors." 38 C.F.R. § 3.304(f). Nor is
there any evidnece of any wounds associated with combat.
The second element of 38 C.F.R. § 3.304(f) regards whether
there is a recognizable stressor. If the veteran was not a
combat veteran, such as in this case, his claimed stressors
are insufficient standing alone and must be corroborated by
credible evidnece, not to include after the fact medical-
nexus evidence. See Doran and Moreau, supra. In the instant
case, the appellant has maintained that during service, he
was under enemy attack on numerous occasions and that he one
picked up a soldier who was carrying another soldier's
forearm and hand. As noted earlier, however, the USASCRUR
was unable to verify that the alleged inservice stressors
occurred, and there is no other credible supporting evidence
for any of the veteran's claimed stressors.
In light of the above, the Board finds that there is no
credible supporting evidence that the appellant's claimed
inservice stressors actually occurred. The Board notes that
the appellant's own statements cannot, as a matter of law,
establish the occurrence of non-combat stressors. Dizoglio,
supra. Moreover, lay statements submitted in support of the
appellant's claim are probative but not conclusive of any
specific stressors alleged by the appellant in service. As
detailed above, the record of evidence does not verify that
the appellant engaged in combat, and there is no credible
evidence that his claimed non-combat stressors actually
occurred, as required by 38 C.F.R. § 3.304(f) and M-21-1,
Part III, 5.14. Accordingly, the preponderance of the
evidence is against entitlement to service connection for
PTSD.
The Board observes that in this case, there are several
diagnoses of PTSD. However, the Board notes that credible
supporting evidence of the actual occurrence of the inservice
stressors cannot consist solely of after-the-fact medical
nexus evidence. Moreau, supra. Additionally, where the
evidence does not support any verifiable inservice non-combat
related stressor, the veteran cannot be service-connected for
PTSD. The criteria for service connection for PTSD,
therefore, have not been met in this case.
The Board is not required to accept the appellant's
uncorroborated account of his claimed stressors as a basis
for substantiating his claim notwithstanding health
professionals who accept as truthful the appellant's
reported service medical history for purposes of treatment
and diagnosis. See Cohen, at 142 (an opinion by a mental
health professional based on a post-service examination of
the veteran cannot be sued to establish the occurrence of a
stressor). See also Swann v. Brown, 5 Vet. App. 229, 233
(1993); Wood v. Derwinski, 1 Vet. App. 406 (1991).
As demonstrated by the evidence discussed above, the
appellant's account of incidents occurring during his period
of time in the military have not been verified and no
credible evidence has otherwise been presented to support the
occurrence of the inservice stressors.
An alleged link set forth by various examiners between the
claimed stressors and service is not in and of itself
sufficient to grant service connection for PTSD. While in
this case, medical evidence establishing a clear diagnosis of
PTSD is present, credible supporting evidence that the
claimed inservice stressors occurred is not. As such, the
appellant's claim for service connection for PTSD therefore
fails on the bases that all three elements required for such
a showing under 38 C.F.R. § 3.304(f) have not been met, and
that the preponderance of the evidence is against the claim
of service connection for PTSD.
In reaching this decision, the Board has considered the
doctrine of reasonable doubt. However, as the preponderance
of the evidence is against the appellant's claim, the
doctrine is not for application. Gilbert v. Derwinski, 1
Vet. App. 49, 54-55 (1990).
ORDER
Service connection for PTSD is denied.
Mark D. Hindin
Member, Board of Veterans' Appeals